Raymond v Honey

This appeal and cross-appeal are brought from the Divisional Court of the Queen's Bench Division which in its judgment dated 7th April 1981 (i) held the appellant to be in contempt of court by reason of a decision to stop the respondent from lodging an application to the High Court to commit the appellant for contempt, but (ii) held the appellant not to have been in contempt in respect of stopping a letter written by the respondent to his solicitor on 26th June 1980.

The appellant was at the material time Governor of Albany Prison in the Isle of Wight where the respondent was serving a sentence for theft of some £2 million imposed on 10th October 1978. At the time of his admission to Albany Prison, on 22nd March 1980, the respondent was awaiting sentence in respect of convictions at St. Albans Crown Court upon four counts of conspiracy to pervert the course of justice.

The respondent was also, at the material time, 1.c. the first half of 1980, facing committal proceedings at Camberwell Green Magistrates' Court in respect of which he had retained solicitors.

On 26th June 1980 the respondent wrote a letter to his solicitors. The appellant suspecting, and, as the Divisional Court held, having reasonable cause to suppose, that the letter contained matter not relating to the pending proceedings, caused it to be opened and read. Finding that it included an allegation to the effect that an Assistant Governor at Albany Prison—a Mr. Bagshaw—had caused to be lost or to disappear, a book belonging to the respondent, the appellant stopped the letter. I shall examine the evidence as to this matter more closely at a later stage. This action, held not to amount to a contempt, forms the subject-matter of the cross-appeal by the respondent.

Thereafter, the respondent prepared an application to the High Court for leave to apply for an order of committal against the appellant under R.S.C. Order 52 for contempt of court. This included a statement, a draft affidavit and exhibits, and a covering letter. The appellant stopped this application on the ground that it included an allegation against a prison officer, and that, under the Prison Rules, it could not be forwarded under what is known as the prior ventilation rule—viz. that such allegations must first be investigated in the prison. This action, held to amount to a contempt, forms the subject-matter of the appeal by the appellant.

I deal first with the appeal.

In considering whether any contempt has been committed by the appellant, there are two basic principles from which to start.

First, any act done which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the courts, is a contempt of court. These are the well known words of Lord Russell of Killowen C.J. in Reg. v. Gray [1900] 2 Q.B. 36, 40.

Since 1900, the force of this principle has in no way been diminished. In A.-G. v. Times Newspapers Ltd. [1974] A.C. 273, Lord Diplock, with whom Lord Simon of Glaisdale agreed, clearly stated that to inhibit suitors from availing themselves of their constitutional right to have their legal rights and obligations ascertained and enforced by courts of law, could amount to contempt of court ( 1.c. p.310): whether the particular action there involved had that effect is immaterial to the present case. The principle has been strongly affirmed by the European Court of Human Rights in the case of Golder (1980) 1 E.H.R.R. 524. The court there decided that access to a court was a right protected by Article 6 of the European Convention, and, while not expressly ruling upon the compatibility with the Convention of Rules 33, 34 and 37 of the Prison Rules 1964 (as to which see below), and while accepting that the right might be subject to limitations, applied this ruling to a convicted United Kingdom prisoner, who ( inter alia) wished to direct proceedings against a member of the prison staff, and to a hindrance of a temporary character.

Secondly, under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication—see Reg. v. Board of Visitors of Hull Prison [1979] 1 Q.B. 425, 455 and Solosky v. The Queen (1979) 105 D.L.R. (3d) 745, 760, Canadian Supreme Court per Dickson J.

These two principles are not disputed by the appellant. The question is to what extent (if any) the respondent's rights were taken away, or affected by, the Prison Rules 1964 or by Standing Orders made by the Secretary of State.

The statutory authority to make Rules is conferred by the Prison Act 1952 (as amended), s.47. This reads as follows:

"Rules for the management of prisons, remand centres, detention centres and Borstal institutions.

(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, detention centres and Borstal institutions respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.

(2) Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case.

(3) [Not material.]

(4) [Not material.]"

The relevant Rules for the purposes of the present appeal and cross-appeal are Rules 33, 34, 37 and 37A.

"Rule 33: Letters and visits generally.

(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.

(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.

(3) Except as provided by these Rules, every letter or communication to or from a prisoner may [substituted for 'shall' in 1974] be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length.

(4) [Deals with visits.]

(5) [Deals with visits.]

(6) [Deals with visits.]

Rule 34. Personal letters and visits.

(1) – (7) Deal with personal letters and visits.

(8) A prisoner shall not be entitled under this Rule to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State.

(9) [Not material.]

Rule 37: Legal Advisers.

(1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer.

(2) A prisoner's legal adviser may, with the leave of the Secretary of State, interview the prisoner in connection with any other legal business in the sight and hearing of an officer.

Rule 37A: Further facilities in connection with legal proceedings.

(1) A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33(3) of these Rules.

(2) [Not material.]

(3) [Not material.]

(4) Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings."

This sub-rule was inserted after the decision of the European Court of Human Rights in Golder's case (see above).

The Rules, in addition, confer powers upon the Secretary of State to make Standing Orders....